Manheimer v. Stern — 45 N.Y. St. Rep. 648

Majority

p. 648

Emanuel Manheimer, Resp’t, v. Solomon Stern et al., App’lts.

(New York Common Pleas, General Term,

Filed April 4, 1892.)

Headnote

Evidence—Memoranda.

Upon the trial of an action to recover a balance for commissions alleged to have accrued to plaintiff upon sales of merchandise effected by him under a contract of employment with the defendants, plaintiff testified that he effected sales to upwards of sixty persons, and that at the time of each sale he made a record of the purchaser’s name, with the amount of his purchase, in a book kept for that purpose, and that he was unable to state without the book such names and amounts, whereupon the book was-produced and the entries received in evidence. Held, that the entries were properly received in evidence.

Appeal from a judgment of the general term of the city court affirming a judgment for plaintiff entered upon the verdict of a jury and an order denying defendants’ motion for a new trial.

Action to recover a balance alleged to be due for commissions earned in the sale of merchandise.

Max Altmeyer {David Leventrilt, of counsel), for resp’t; A. S. Derrick, for app’lts.

As the case does not purport to contain all the evidence taken upon the trial its sufficiency to sustain the verdict must be presumed and is not now before us for review. Arnstein v. Haulenbeek, 16 Daly, 382 ; 34 St. Rep., 297 ; Aldridge v. Aldridge, 120 N. Y., 614 , 616; 31 St. Rep., 948 .

It remains, therefore, for us to notice the only exception urged for reversal. The action was brought to recover a balance for commissions alleged to have accrued to plaintiff upon sales of merchandise effected by him under a contract of employment with the defendants, and under the issues created by the pleadings it was incumbent upon plaintiff to prove the several sales alleged to have been effected by him. On the trial he testified that between June 22, 1888, and September 15, 1889, he effected sales to ’ upwards of sixty different persons, that at the time of each sale he made a record of the name of the purchaser, with the amount of his purchase, in a book kept for that purpose, and that he was unable without the book to state the names of the several purchasers and the amounts of their respective purchases. The book was produced and the entries therein were offered and received in evidence, under objection of defendant’s counsel respecting their competency as an auxiliary to the witness’ testimony, and for the purpose of ascertaining the names of the several alleged

p. 649

purchasers and the amounts of their respective purchases, and not to establish the fact of the several sales claimed to have been effected, or that the witness effected such sales.

That under the circumstances mentioned a memorandum made by the witness may be admitted in evidence is well settled by authority, Halsey v. Sinsebaugh, 15 N. Y., 485 ; Russell v. H. R. R. R. Co., 17 id., 135, 139; Guy v. Mead, 22 id., 462 ; Howard v. McDonough, 77 id., 592 ; Peck v. Valentine, 94 id., 569, 571; Wilson v. Kings Co. E. R. R. Co., 114 id., 487, 498; 24 St. Rep., 81 ; but were that not so we should incline to the view that for the purposes mentioned it is not error to admit the memorandum, as a contrary rule, unless in the case of a person possessed of an abnormally acute memory, justice might be defeated where the demand for which recovery is sought covers, as in the present case, a multiplicity of transactions with as many different persons, the recollection of the particulars of which is beyond the ordinary bounds of human possibility.

Judgment affirmed, with costs.

Daly, Oh. J., concurs.